R v Jamieson[2007] QCA 20

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  The applicant was on the 28th of March 2006 following a trial sentenced to seven years imprisonment for armed robbery in company and to a concurrent three-year term for the unlawful use of a motor vehicle with a circumstance of aggravation.

The applicant appealed against his conviction by notice filed 13 April 2006 and in that form deleted reference to any application for leave to appeal against sentence.  He abandoned that appeal recently, on the 1st of February 2007.

On 23rd August last year the applicant was granted an extension of time within which to apply for leave to appeal against sentence.  He attributed his failure to apply within time to lack of understanding of the structure of his sentences and made his application on 15 May 2006, which was only a fortnight out of time.  In his material in support of that application, and the current application, the applicant referred to section 156A of the Penalties and Sentences Act 1992 (Qld) and the circumstance that the learned sentencing Judge did not order that the seven-year term imposed in March 2006 be served cumulatively upon some other particular term of imprisonment.

The Crown accepts that section 156A applied but refers to the terms of subsection 2 which are:

"A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve."

This sentence was imposed on 28th March 2006 which was after the expiration, which occurred on 28th January 2005, of the only other term to which the applicant was liable.  No order was therefore required under subsection 2.

I proceed now to provide some brief account of the instant offence and the applicant's prior criminal history.  The offence was committed on the 14th of February 2001 when the applicant was 32 years of age.  Armed with a gun, the applicant and another man named Best entered a bank and menaced a customer and bank staff.  They stole more than $13,000 and left in a previously stolen vehicle, which they later abandoned.

The co-offender Best pleaded guilty and he was sentenced to seven years' imprisonment with a recommendation for parole after two and a-half years.  Like Best, the applicant had a substantial and significant prior criminal history.

In February 1992 the applicant was convicted of armed robbery and sentenced to seven years imprisonment.  He complains now that he did not commit that robbery, but the conviction stands and this Court must proceed on that basis.

The applicant escaped from custody in September 1993 and was returned to custody in April 1994 and then sentenced to 18 months' imprisonment for the escape, necessarily to be served cumulatively.  In December 1996 the applicant was released on parole.  While on parole, in March 1998 the applicant committed a drug offence which led to the cancellation of his parole and the issue of warrants.  It was while he was at large and subject to those warrants that the applicant committed the instant offences.

The applicant was returned to custody in March 2001 and required to serve the balance of the seven year term for the first robbery together with the cumulative 18 month term for the escape.  It was those terms which expired on the 28th of January 2005.  The applicant remained on remand, however, for the instant robbery and the drug offence.  He was sentenced for the drug offence in May 2005 and, following appeal, was subjected to a three-year term suspended after six months.  In the result, he effectively served ten months on remand for the instant robbery and the drug offence.

The learned Judge treated the applicant and Best as equal participants and sentenced the applicant to seven years imprisonment but without the moderating effect of a recommendation in relation to parole because the applicant, unlike Best, did not plead guilty.

In his comprehensive written material received today the applicant complains that he has been given crushing treatment overall, but his present position is the result of his conviction for two armed robberies, the cancellation of his parole because of an escape from lawful custody, and the drug offending.  The applicant draws attention to the effect of this penalty in context of the others on his wife and children but that consideration did not compel the sentencing Judge to take a more moderate approach.  The applicant also complains about the effect upon his position of legislative change but that is a burden which must, because of the legislation, be borne.

The learned Judge's sentencing remarks show that he approached the matter in an orthodox way.  He was full alive to the totality principle.  He was also astute to take account of the comparability between the applicant's position and that of Best.  In the end, bearing in mind the applicant's past criminal history, especially of course his having been convicted of the prior armed robbery and the gravity of this particular offence, it was plainly within the Judge's discretion to impose the penalty he did which could not be described as manifestly excessive.

The applicant referred to a number of outstanding charges:  four of armed robbery and other charges of the unlawful use of motor vehicles.  He informed us that one of the armed robberies is alleged to have been committed in the year 2001 and three in 1993.  He points out that his being on remand for those charges excluded him from participation in courses otherwise available in the Corrective facility.  Plainly, the prosecution should attend to the resolution of those matters as soon as possible, and we have Mr Copley's assurance in that regard.

The application should be refused.

WILLIAMS JA:  I agree.  I would only add some brief observations in relation to the outstanding charges.  The indictment against the applicant was presented to the Court on the 30th of June 2003.  As the Chief Justice has indicated, it contained some counts alleging robberies in 1993 and other counts involving robberies in 2001.  The trial proceeded in March 2006, and on the 15th of March 2006 the applicant was arraigned on only counts 13 and 14 on the indictment.  It was those counts on which he was found guilty by the jury and sentenced as indicated by the Chief Justice.

It appears that the remaining counts on the indictment presented in June 2003 have not yet been disposed of.  In my view, those matters should be disposed of one way or the other as quickly as possible because, whilst they are hanging over the applicant's head, he is not able to progress through the Corrective Services system and is virtually being treated as a prisoner on remand.  I agree that the application should be dismissed.

HOLMES JA:  I agree with what has been said by the Chief Justice and by Justice Williams and with the order proposed.

THE CHIEF JUSTICE:  The application is refused.